In a recent judgment, the Supreme Court ruled that mentioning of date, day and time of appearance in a summons issued under Order V Rule 20 was a mandatory statutory requirement and not an empty formality.
The said ruling was pronounced by the Supreme Court in the matter of Auto Cars Vs. Trimurti Cargo Movers Pvt. Ltd., C.A. No. 2113 of 2018 (Arising out of S.L.P.(C) No. 14648 of 2017) decided on 15.02.2018. In the said case, the summons in question merely stated that the defendant was to appear before the court within 15 days from the service of publication of this summons on them.
In the facts of this particular case, after the summons of a money recovery suit could not be served on the defendants through the ordinary mode of service, the plaintiff sought permission to serve them with the substituted service by way of publication under Order V Rule 20 of the CPC. The said application was allowed. Consequently, the summons was published in two local newspapers. The defendants did not appear in the case, as directed in the summons, therefore, the Court placed the defendants ex-parte and proceeded to decide the suit on merits in their absence and eventually passed an ex-parte decree against the defendants. On coming to know of passing of the decree against them, the defendants filed an application under Order IX Rule 13 for setting aside the ex-parte decree on the ground that the summons of the suit was not duly served on them. It is pertinent to mention that the summons mentioned that the defendants should appear before the Registrar of the Court within 15 days from the service of publication of this summons on them exclusive of the day of such service of the summons and are summoned to appear before this Court in person or through advocate to answer the plaintiff’s claim on the day the case is set down for hearing upon which date you(defendants) must be prepared to produce all your witness and all your documents in your possession or power upon which you intend to rely in support of your case. The summons then also mentioned that you (defendants) are hereby required to take notice that in default of your causing an appearance to be so entered, the suit will be liable to be heard and determined in your absence.
The Single Judge dismissed the application under Order IX Rule 13 holding that the summons was duly served on them. The said finding was affirmed by the Division Bench in appeal.
The Court, while referring to the format of summons under Order V Rule 20 as prescribed in Appendix-B, Process No.I, noted that the legislature while prescribing the format of summons in the Code has provided one column where the Court is required to mention a specific “day, date, year and time” for the defendant’s appearance in the Court to enable him to answer the suit filed against him/her. This is also the requirement prescribed under Section 27 of the Code as is clear from the words occurring therein “and may be served in the manner prescribed on such day”.
The Court observed that Order V Rule 20(3) provides that when the service is effected by way of publication by the orders of the Court, the Court has to fix “time” for the appearance of the defendant, as the case may require. However, it does not dispense with the requirement of mentioning the actual day, date, year and time for defendant’s appearance in the Court because it is prescribed in format.
The Court held that mentioning of the specific “day, date, year and time” in the summons is a statutory requirement prescribed in law (Code) and, therefore, it cannot be said to be an empty formality. Therefore, if the specific day, date, year and the time for defendant’s appearance in the Court concerned is not mentioned in the summons though validly served on the defendant by any mode of service prescribed under Order V amounted to insufficient compliance of Order V Rule 20 as it would not be possible for defendant to attend the Court for want of any fixed date given for his/her appearance.
Therefore, the Court held that the summons published in the newspapers suffered from material infirmity therein, which rendered the summons so also the service made on the defendants bad in law as the mandatory requirement of Section 27 read with Order V Rule 20(3) and Process-IA of Appendix-B to mention the specific working day, date, year and time in the summons was not fulfilled.